State of New York
Department of State
Committee on Open Government

Mr. Peter R. Kehoe
Corporation Counsel
City of Troy Department of Law
City Hall, One Monument Square
Troy, NY 12190

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Kehoe:

I have received your letter of May 11 in which you referred to
a request for "[a]ny and all records which document the suspension
or other disciplinary action and the reason for such action, taken
by the City against former City employee...during his tenure with
the City of Troy." You added that the City maintains a single
one
page document responsive to the request and described its contents
as follows:

"-the subject of the document is Notice of
Discipline (and/or Discharge)

-part of the document describes the alleged
acts of misconduct

-part of the document sets forth the penalty
which flows from the alleged acts

-part of the document sets forth the charged
employee's rights pursuant to the CSEA
agreement with the City of Troy.

-typed on the document, immediately following
the employee's rights section is the
following:

I have read the foregoing notice of
discipline and penalty; am aware of
and am fully familiar with my rights
pursuant to the appropriate
collective bargaining agreement;
admit to charges herein and accept
the penalty so stated. I hereby
request that copies of these charges
not be forwarded to any CSEA
personnel."

The employee's signature follows, and beneath the signature appears
the ensuing statement:

"CONDUCT SUCH AS THIS IS UNACCEPTABLE AND ANY
FURTHER INCIDENT WILL RESULT IN IMMEDIATE
DISMISSAL".

You have asked whether in my opinion the record in question
must be disclosed in its entirety, particularly in view of
provisions concerning the protection of privacy and those portions
of the record describing "alleged acts of misconduct", as
opposed
to final agency determinations.

Based upon your description of the record and the judicial
interpretation of the Freedom of Information Law, I believe that
the record must be disclosed in toto. In this regard, I offer the
following comments.

First, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law.

Second, there is nothing in the Freedom of Information Law
that deals specifically with personnel records or personnel files.
Further, the nature and content of so-called personnel files may
differ from one agency to another, and from one employee to
another. In any case, neither the characterization of documents as
"personnel records" nor their placement in personnel files
would
necessarily render those documents "confidential" or deniable
under
the Freedom of Information Law (see Steinmetz v. Board of
Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30,
1980). On the contrary, the contents of those documents serve as
the relevant factors in determining the extent to which they are
available or deniable under the Freedom of Information Law. Both
of the grounds for denial to which you alluded are relevant to an
analysis of the matter; neither, however, could in my view serve to
justify a denial of access.

Perhaps of greatest significance is §87(2)(b), which permits
an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy".
In
addition, as you are aware, §89(2)(b) provides a series of examples
of unwarranted invasions of personal privacy.

While the standard concerning privacy is flexible and may be
subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public officers
employees. It is clear that public officers and employees enjoy a
lesser degree of privacy than others, for it has been found in
various contexts that public officers and employees are required to
be more accountable than others. With regard to records pertaining
to public officers and employees, the courts have found that, as a
general rule, records that are relevant to the performance of a
their official duties are available, for disclosure in such
instances would result in a permissible rather than an unwarranted
invasion of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County
of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981;
Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v.
City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of
State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v.
Board of Education, East Moriches, supra; Capital Newspapers v.
Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records
are irrelevant to the performance of one's official duties, it has
been found that disclosure would indeed constitute an unwarranted
invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct.,
Nassau Cty., NYLJ, Nov. 22, 1977].

The other ground for denial of significance, §87(2)(g), states
that an agency may withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government...

"It is noted that the language quoted above
contains what in effect is a double negative. While inter-agency or intra-agency
materials may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could
in
my view be withheld. Insofar as a request involves final agency
determinations, I believe that those determinations must be
disclosed, again, unless a different ground for denial could be
asserted.

In terms of the judicial interpretation of the Freedom of
Information Law, I point out that in situations in which
allegations or charges have resulted in the issuance of a written
reprimand, disciplinary action, or findings that public employees
have engaged in misconduct, records reflective of those kinds of
determinations have been found to be available, including the names
of those who are the subjects of disciplinary action [see Powhida
v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva
Printing, Scaccia and Sinicropi, supra]. In Geneva Printing, supra,
a public employee charged with misconduct and in the process of an
arbitration hearing engaged in a settlement agreement with a municipality.
One aspect of the
settlement was an agreement to the effect that its terms would
remain confidential. Notwithstanding the agreement of
confidentiality, which apparently was based on an assertion that "the
public interest is benefited by maintaining harmonious relationships
between government and its employees", the court
found that no ground for denial could justifiably be cited to
withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public
servants are held accountable when they abuse
the public trust outweighs any advantage that
would accrue to municipalities were they able
to negotiate disciplinary matters with its
employee with the power to suppress the terms
of any settlement".

In so holding, the court cited a decision rendered by the Court of
Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d
527), the Court of Appeals in concluding that
a provision in a collective bargaining
agreement which bargained away the board of
education's right to inspect personnel files
was unenforceable as contrary to statutes and
public policy stated: 'Boards of education are
but representatives of the public interest and
the public interest must, certainly at times,
bind these representatives and limit or
restrict their power to, in turn, bind the
public which they represent. (at p. 531).

A similar restriction on the power
of the representatives for the Village of Lyons to
compromise the public right to inspect public
records operates in this instance.

The agreement to conceal the terms of this
settlement is contrary to the FOIL unless
there is a specific exemption from disclosure.
Without one, the agreement is invalid insofar
as restricting the right of the public to
access.:

It was also found that the record indicating the terms of the
settlement constituted a final agency determination available under
the Law. The decision states that:

"It is the terms of the settlement, not just a
notation that a settlement resulted, which
comprise the final determination of the
matter. The public is entitled to know what
penalty, if any, the employee suffered...The
instant records are the decision or final
determination of the village, albeit arrived
at by settlement..."

Another decision also required the disclosure of a settlement
agreement between a teacher and a school district following the
initiation of disciplinary proceedings under §3020-a of the
Education Law (Buffalo Evening News v. Board of Education of the
Hamburg School District and Marilyn Well, Supreme Court, Erie
County, June 12, 1987). Further, that decision relied heavily upon
an opinion rendered by this office.

It has been held in other circumstances that a promise or
assertion of confidentiality cannot be upheld, unless a statute
specifically confers confidentiality. In Gannett News Service v.
Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780
(1979)], a state agency guaranteed confidentiality to school
districts participating in a statistical survey concerning drug
abuse. The court determined that the promise of confidentiality
could not be sustained, and that the records were available, for
none of the grounds for denial appearing in the Freedom of
Information Law could justifiably be asserted. In a decision
rendered by the Court of Appeals, it was held that a state
agency's:

"long-standing promise of confidentiality to
the intervenors is irrelevant to whether the
requested documents fit within the
Legislature's definition of 'record' under
FOIL. The definition does not exclude or make
any reference to information labeled as
'confidential' by the agency; confidentiality
is relevant only when determining whether the
record or a portion of it is exempt..."
[Washington Post v. Insurance Department,
61
NY 2d 557, 565 (1984)].

Most recently, in a case involving facts in many ways similar
to those that you presented, it was held in Anonymous v. Board of
Education [616 NYS 2d 867 (1994)] that:

"...it is disingenuous for petitioner to argue
that public disclosure is permissible...only
where an employee is found guilty of a
specific charge. The settlement agreement at
issue in the instant case contains the
petitioner's express admission of guilt to a
number of charges and specifications. This
court does not perceive the distinction
between a finding of guilt after a hearing and
an admission of guilt insofar as protection
from disclosure is concerned" (id., 870).

The court also referred to contentions involving privacy as
follows:

"Petitioner contends that disclosure of the
terms of the settlement at issue in this case
would constitute an unwarranted invasion of
his privacy prohibited by Public Officers Law
§ 87(2)(b). Public Officers Law § 89(2)(b)
defines an unwarranted invasion of personal
privacy as, in pertinent part, '(i) disclosure
of employment, medical or credit histories or
personal references of applicants for
employment.' Petitioner argues that the
agreement itself provides that it shall become
part of his personnel file and that material
in his personnel file is exempt from
disclosure..." (id.).

In response to those contentions, the decision states that:

"This
court rejects that conclusion as establishing an exemption from disclosure
not created by statute (Public Officers Law §
87[2][a]), and not within the contemplation of
the 'employment, medical or credit history'
language found under the definition of
'unwarranted invasion of personal privacy' at
Public Officers Law § 89(2)(b)(i). In fact,
the information sought in the instant case,
i.e., the terms of settlement of charges of
misconduct lodged against a teacher by the
Board of Education, is not information in
which petitioner has any reasonable
expectation of privacy where the agreement
contains the teacher's admission to much of
the misconduct charged. The agreement does
not contain details of the petitioner's
personal history-but it does contain the
details of admitted misconduct toward
students, as well as the agreed penalty. The
information is clearly of significant interest
to the public, insofar as it is a final
determination and disposition of matters
within the work of the Board of Education and
reveals the process of and basis for
government decision-making. This is not a
case where petitioner is to be protected from
possible harm to his professional reputation
from unfounded accusations (Johnson Newspaper
Corp. v. Melino, 77 N.Y.2d 1, 563 N.Y.S.2d
380, 564 N.E.ed 1046), for this court regards
the petitioner's admission to the conduct
described in the agreement as the equivalent
of founded accusations. As such, the
agreement is tantamount to a final agency
determination not falling within the privacy
exemption of FOIL 'since it was not a
disclosure of employment history.'" (id.,
871).

In sum, based upon judicial decisions involving issues
analogous to those that you raised, I believe that the record
sought must be disclosed in its entirety.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.